Citation Nr: 1142869
Decision Date: 11/22/11 Archive Date: 12/06/11
DOCKET NO. 11-00 029A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Hartford, Connecticut
THE ISSUE
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b).
REPRESENTATION
Appellant represented by: National Veterans Disability Advocates, LLC
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. L. Tarr, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1954 to June 1957.
This appeal to the Board of Veterans' Appeals (Board) arose from a January 2010 rating decision in which the RO denied entitlement to a TDIU. In February 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2010 (resent to the Veteran in December 2010), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2011.
The Board notes that, while the Veteran previously was represented by Disabled American Veterans (DAV), in January 2011, the Veteran granted a power-of-attorney in favor of National Veterans Disability Advocates, LLC with regard to the claim on appeal. The Veteran's current representative has submitted written argument on his behalf and represented him at his hearing. The Board recognizes the change in representation.
In June 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In connection with the hearing, the Veteran's representative submitted additional evidence, along with a waiver of the Veteran's right to have this evidence initially considered by the RO. See 38 C.F.R. §§ 20.800, 20.1304 (2011).
During the hearing the Veteran requested, and the undersigned granted, a 30-day abeyance period for the submission of additional evidence. In July 2011 and September 2011, the Veteran's representative submitted additional medical evidence directly to the Board, along with waivers of the Veteran's right to have this evidence initially considered by the RO.
In October 2011, the Acting Chairman of the Board, on his own motion, advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2011).
For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required.
REMAND
The Board's review of the claims file reveals that further RO action on the claim on appeal is warranted.
Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340 , 3.341, 4.16(a) (2011).
For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id.
It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b) .
In this case, the Veteran has been granted service connection for degenerative disc disease of the lumbar spine (rated as 20 percent disabling); for radiculopathy of the right and left lower extremities as secondary to degenerative disc disease (rated as 10 percent disabling for each extremity from March 9, 2005 to March 16, 2010, and as 20 percent disabling for each extremity thereafter); for traumatic arthritis of the right knee (rated as 10 percent disabling); for residual scar of the right knee (rated as 10 percent disabling); and for hemorrhoids (rated as 10 percent disabling). His combined disability rating is 70 percent. Additionally, the Veteran's service-connected degenerative disc disease of the lumbar spine and radiculopathy of the right and left lower extremities result from a common etiology (i.e., his degenerative disc disease of the lumbar spine) and together these disabilities have a combined rating of 50 percent.
As of March 17, 2010, the Veteran has a disability rated 40 percent or more and his combined disability rating is 70 percent, the minimum percentage requirements of 38 C.F.R. § 4.16(a)-for consideration of a schedular TDIU. However, pertinent to the current claim for a TDIU, the matter of the Veteran's entitlement to a TDIU on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b), for the period prior to March 17, 2010 is for consideration.
The Board notes that the Veteran has not been employed at any point pertinent to the claim on appeal. He last worked in 1992 in inventory control.
In September 2009, the Veteran was afforded a VA examination to obtain a medical option regarding unemployability. The examiner noted that the Veteran was service connected for lumbar degenerative disc disease with bilateral lower extremity radiculopathy and for degenerative joint disease of the right knee. She also noted that the Veteran had coronary artery disease, for which he was not service connected. In regards to the Veteran's service-connected back and knee disabilities, the examiner stated that the Veteran was unable to walk or sit for more than 45 minutes. The examiner also noted that the Veteran's non-service-connected coronary artery disease resulted in further impairment. While the examiner opined that the Veteran's disabilities prevented him from maintaining a physical or sedentary job, she considered both service-connected and non-service connected disabilities when rendering this opinion, and she did not indicate whether the Veteran's service-connected disabilities, alone, rendered him unemployable. Therefore, this opinion is inadequate for evaluating the claim for a TDIU.
The Veteran submitted private medical evaluations from Dr. Carangelo and Dr. Somogyi; however, this evidence does not provide a sufficient basis for deciding the claim for a TDIU. In a May 2007 treatment report, Dr. Carangelo stated that at age 72, the Veteran should be considered 100 percent disabled and not have to work. Similarly, in an August 2011 treatment report, Dr. Carangelo noted the Veteran's age when discussing the impact of his disabilities on his ability to work. Thus, it appears that Dr. Carangelo considered the Veteran's age in determining that the Veteran was 100 percent disabled. Moreover, in a June 2011 evaluation report, Dr. Somogyi concluded that while the Veteran's back and knee disabilities prevented him from performing a full-time job, he was capable of part-time sedentary employment. Significantly, neither physician opined that the Veteran was unemployable due solely to his service-connected disabilities.
Under these circumstances, the Board finds that the question of whether the Veteran's service-connected disabilities, alone-either individually or in concert, and without regard to his age and/or nonservice-connected disabilities-render(s) him unable to secure or maintain employment remains unresolved. Hence, a medical opinion in this regard-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-is needed to resolve the claim for a TDIU. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Hence, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, shall result in denial of the claim for a TDIU (which, in this case, is considered a claim for increase). See 38 C.F.R. § 3.655(b) (2011). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility.
Prior to arranging for the Veteran to undergo examination, the RO should obtain and associate with the claims file all outstanding, pertinent records.
The record reflects that the Veteran has been receiving treatment from the Newington, Connecticut VA Medical Center (VAMC). The claims file contains VA medical records from the Newington VAMC dated through July 19, 2010; however, more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Newington VAMC any outstanding, pertinent records, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.
Further, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).
Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2011).
The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim for a TDIU.
The RO's adjudication of the claim should include consideration of all evidence added to the record since the RO's last adjudication of the claim-to include, for the sake of efficiency, evidence submitted directly to the Board in June 2011, July 2011, and September 2011, notwithstanding the waivers of initial RO consideration of this evidence. In adjudicating the claim, the RO should also consider the provisions of 38 C.F.R. § 4.16(b), as appropriate; specifically, whether the criteria for invoking the procedures for assignment of a TDIU, on an extra-schedular basis, are met at any time prior to March 17, 2010.
Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action:
1. The RO should obtain from the Newington VAMC all outstanding pertinent records of evaluation and/or treatment of the Veteran, dated since July 19, 2010. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file.
2. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim for a TDIU that is not currently of record.
The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).
3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.
4. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo a VA examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and a report of the examination should include discussion of the Veteran's documented medical history and assertions.
All necessary tests and studies should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. In particular, the examiner should describe the functional effects of each service-connected disability on the Veteran's ability to perform the mental and physical acts required for substantially-gainful employment.
Then, the physician should render an opinion, based upon review of the record and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that-without regard to the Veteran's age or impairment from any nonservice-connected disability(ies)-the Veteran's service-connected disabilities, either individually or in concert, render(s) him unable to obtain or retain substantially gainful employment. In rendering the requested opinion, the physician should discuss the pertinent medical and other evidence of record.
The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report.
5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility.
6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998).
7. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim for a TDIU.
If the Veteran fails, without good cause, to report to the scheduled examination, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate.
Otherwise, the RO should adjudicate the claim in light of pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claim) and legal authority. The RO's adjudication of the claim for a TDIU should also include consideration of the provisions of 38 C.F.R. § 4.16(b)-for the pertinent period prior to March 17, 2010-as appropriate.
8. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.
The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).
This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). The RO is reminded that this appeal has been advanced on the Board's docket.
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JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).